The FCC Doesn’t Have Authority to Regulate the Internet—and Shouldn’t

In the fall of 2007, word emerged that Comcast had degraded the Internet traffic of some customers, whose use of a protocol called BitTorrent interfered with other Comcast customers’ Internet access.

Comcast handled it badly, and sites like TechLiberationFront covered the “Comcast Kerfuffle” extensively. Consumers prefer unfiltered access to the Internet.

By springtime, Comcast had sorted things out and made a deal with BitTorrent to develop a neutral traffic-management protocol.

Four months later, the FCC weighed in, finding that Comcast had acted badly and telling Comcast not to do that again. Today the U.S. Court of Appeals for the D.C. Circuit concluded that the FCC exceeded its authority and reversed the FCC’s order against Comcast.

The court’s decision marks another turning point in the debate over whether the federal government should regulate Internet access services. What’s entertaining about it is that the problem was solved two years ago by market processes—sophisticated Internet users, a watchdog press, advocacy groups, and interested consumers communicating with one another over the Internet.

The next step will be for advocates to run to Congress, asking it to give the FCC authority to fix the problems of two years ago. But slow-moving, technologically unsophisticated bureaucrats do not know better than consumers and technologists how to run the Internet. The FCC’s “net neutrality” hopes are nothing more than public utility regulation for broadband. If they get that authority, your online experience will be a little more like dealing with the water company or the electric company and a little less like using the Internet.

As I’ve noted before, Tim Lee’s is the definitive paper. The Internet is far more durable than regulators and advocates imagine. And regulators are far less capable of neutrally arbitrating what’s in the public interest than most people realize.

The FCC doesn’t have authority to regulate the Internet. Congress and the president shouldn’t give it that authority.